Citation Nr: 0626060
Decision Date: 08/22/06 Archive Date: 08/31/06
DOCKET NO. 04-16 809 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri
THE ISSUE
Entitlement to separate schedular 10 percent disability
ratings for tinnitus in each ear.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Lawrence W. Klute, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1978 to July
1981.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a January 2003 decision by the RO.
FINDING OF FACT
The veteran experiences recurrent bilateral tinnitus.
CONCLUSION OF LAW
The claim for separate schedular 10 percent disability
ratings for tinnitus in each ear is without legal merit.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1,
4.87, Diagnostic Code 6260 (2002); 38 C.F.R. § 4.87,
Diagnostic Code 6260 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran's representative has asserted that the veteran is
entitled to separate 10-percent disability ratings for
service-connected tinnitus because the veteran has tinnitus
in each ear.
In a January 2003 rating decision, the RO denied the
veteran's claim for separate 10-percent ratings for tinnitus
in each ear. The RO concluded that under Diagnostic Code
6260 there was no legal basis for assignment of a separate
10 percent evaluation for tinnitus of each ear. The veteran
appealed that decision to the Board.
In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the United
States Court of Appeals for Veterans Claims (Court) held that
pre-1999 and pre-June 13, 2003, versions of Diagnostic Code
6260 required the assignment of separate ratings for tinnitus
affecting each ear. VA appealed this decision to the United
States Court of Appeals for the Federal Circuit (Federal
Circuit) and stayed the adjudication of tinnitus rating cases
affected by the Smith decision. In Smith v. Nicholson, 451
F.3d 1344 (Fed. Cir. 2006), the Federal Circuit reversed the
Court's decision and affirmed VA's longstanding
interpretation of Diagnostic Code 6260 as authorizing only a
single 10-percent rating for tinnitus, regardless of whether
the tinnitus was unilateral or bilateral. (Since the Federal
Circuit's decision in Smith, the Board has lifted the stay of
adjudication of tinnitus rating cases.)
In this case, the veteran's service-connected tinnitus has
been assigned the maximum schedular rating of 10 percent.
38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal
basis upon which to award separate schedular evaluations for
tinnitus in each ear, the veteran's claim of entitlement to
separate 10 percent ratings must be denied as a matter of
law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(where the law and not the evidence is dispositive, the Board
should deny the claim based on a lack of legal merit).
The Board notes that, in November 2000, the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, and 5107 (West 2002). To implement the
provisions of the law, VA promulgated regulations at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The
VCAA and its implementing regulations include, upon the
submission of a substantially complete application for
benefits, an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify the
claimant what evidence will be obtained by whom. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b). In addition, they define
the obligation of VA with respect to its duty to assist a
claimant in obtaining evidence. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159(c).
As noted above, the veteran's claim lacks legal merit; hence,
the duties to notify and assist imposed by the VCAA are not
applicable in this appeal. See e.g., Nelson v. Principi, 18
Vet. App. 407, 410 (2004).
ORDER
The claim of entitlement to separate schedular 10 percent
disability ratings for tinnitus in each ear is denied.
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs